GOPAL RAJKHOWA Vs. STATE OF ASSAM
LAWS(GAU)-1994-7-6
HIGH COURT OF GAUHATI
Decided on July 29,1994

GOPAL RAJKHOWA Appellant
VERSUS
STATE OF ASSAM Respondents


Referred Judgements :-

DEOKINANDAN PRASAD VS. STATE OF BIHAR [REFERRED TO]
STATE OF PUNJAB VS. IQBAL SINGH [REFERRED TO]
D S NAKARA VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

- (1.)JUSTICE Krishna Iyer in his book Indian JUSTICE - Perspectives and Problems (Sri Asutosh Mukherjee Memorial Lecture) stated as follows :
"My rude belief is that the proper role of a Judge is to do justice between the parties before him. If there is rule of law which impairs the doing of justice, then it is the province of the Judge to do all he wants legitimately - to avoid that rule - or even to change it - so as to do justice in the instant case before him. He need not wait for the legislator to intervene, because that can never be any help in the instant case. I would emphasise, however, the word legitimately, the Judge is himself subject to the law and must abide by it."
This is a hard case of a person demanding that the authority should be directed to pay pension to him. The brief facts are as follows :- The petitioner was first appointed as Driver of Tractor under the Sibsagar Sub-Division of P.W.D. on 1.7.57 at Jorhat. First it was not under regular establishment. Then with effect from 1.1.81 it was placed in regular establishment and this is shown ty letter dated 5.11.81. By order dated 14.7.82, die petitioner was provisionally confirmed against a permanent post of Roller Driver with effect from 1.7.82 i.e. Annexure 2 to the writ application. The petitioner retired from service on 31.7.88 after serving the department for more than 30 years. The petitioner after retirement duly filled up the pension papers and the Executive Engineer,. P.W.D. (Roads), Golaghat Division forwarded the same for disposal to the Accountant General, Assam, Guwahati, respondent No. 4 vide letter dated 25.8.88, i.e. Annexure 5 to the Writ application. A provisional pension of Rs. 82/- was sanctioned on 3.4.89 and 6.2.89. Annexures No. 6,7 and 8 to the writ application. The Respondent No. 4, the Accountant General, wrote to the Executive Engineer on 10.8.89 that the petitioner is not entitled to pension as his qualifying service- falls short of required number of years of service. The Accountant General also directed that the total amount of provisional pension and other benefits granted to the petitioner should be made known to the authority so that steps can be taken to recover this amount from his gratuity. The authority was further directed not to pay further provisional pension beyond 31.5.89 i.e. Annexure 9 to the writ application. It is submitted that as the petitioner has put up continuous service for a period of 31 years, the petitioner has acquired a legal right to receive the pension. It is also contended that the petitioner served against a substantive and permanent post. An affidavit-in-opposit in has been filed on behalf of the respondent No. 4. In that affidavit refusal of pension to the petitioner is sought to An affidavit-in-opposit in has been filed on behalf of the respondent No.4. In that affidavit refusal of pension to the petitioner is sought tobe justified on the basis of Rule 153 of the Assam Services (Pension) Rules,1969 and Rule 108,111,135 (2) of the Pension Rules. No affidavit-in-opposition has been filed on behalf of the respondents No. 1 to 3. I have heard Shri A.S. Choudhury, Learned Advocate for the petitioner. None appeared for the respondents. In AIR 1983 SC Page 130 (D.S. Nakara and Ors-Vs-Union of India), the Supreme Court begain the judgment by quoting a prayer of Wolsey's which is as follows:
"Had I served my God ;as reverently as I did my King, I would not have fallen on these days of penury."
In paragraphs 20, 29, 30 and 31 of that judgment the Supreme Court pointed out as follows : Paragraph - 20
"The antiquanted notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court:'has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad-Vs-State of Bihar, 1971 (Supp) SCC 634: AIR 1971 SC 1409 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab-Vsi-Iqbal Singh, (1976) 3 SCR 360 : (AIR 1976 SC 667)."
Paragraph 29
"Summing-up it can said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measiure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall: back on savings. One such saving in kind is when you gave your best in the hey day of life to your employer, in days of invalidity, economic security byway of periodical payment is assured. The term has been judicially defined as a stated allowances or stipend made in consideration of past service r a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon."
Paragraph 30
"The discernible, purpose thius underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the Courts may not so interpret such statute as to nender them inane (see American Jurisprudence 2d. 881)."
Paragraph 31
"From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso o Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an exgratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension solely on the ground that some retired earlier and some retired later. Article 39 (a) requires the State to secure that the health and strength of workers men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 41 obligates the State within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 43 (3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities."
The Assam Services (Pension) Rules, 1969 were made in exercise of the powers conferred by the proviso of Art. 309 of the Constitution of India (Hereinafter called the rules). The Rule 31 provides as follows:
"31. Conditions of qualifying service. The service of an officer does not qualify for pension unless it conforms to the following three conditions: Firstly, the service must be under Government: Secondly, the employment must be substantive and permanent ; Thirdly, the servant must be paid by Government; Provided that the Governor may, even though either or both of conditions (1) and (I) above are not fulfilled, - (i) declare that any specified kind of service rendered in a non gazetted capacity shall qualify for pension, and (ii) in individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension."
Rule 108 (a) of the Rules provides as follows: 108 (a) After a sen/ice of less than ten years, gratuity not exceeding (except in special cases, and under the orders of the Governor up to a maximum of 12 months emolument) one-half month's emolument for each completed six monthly period of service. If the emoluments of the officer has been reduced during last three years of service, otherwise than as a penalty, average emoluments may, at the discretion of the authority which has power to sanction the gratuity, be substituted for emoluments. So, under this Rule, the minimum period of service is 10 years. Rule 135 (2) provides for death-cum-retirement gratuity and the period of qualifying service to be put up for that particular purpose. Rule 153 provides as follows: 153. Contingency and other non-pensionable staff - (1) The Governor of Assam may, at his discretion and subject to such condition as he may think fit to impose, grant gratuity not exceeding six months pay to a person who retires after rendering many years of satisfactory service as a contingency employee, or in Government Porter Corps, or in any other non- pensionable service (other than members of the work-charged establishment); provided that no retirement benefit is otherwise admissible to such person under any other specific rule or order applicable to him. Note. : Though service in a work-charged establishment is non-pensionable, members of such establishment may, on retirement, be entitled to gratuity under rule 329 (2) of the Assam Financial Rules, Second Edition. Such staff will not be entitled to any gratnity under above rule in addition to the gratuity admissible under rule 329 off Assam Financial Rules. Extract of rule 329 of the Assam Financial Rules : "329(1) The following rules and orders are applicable to the members of the work-charged establishment in the matter of pay, increment, leave, travelling allowance, etc. (2) Pension and Gratiuties - Members of the work charged establishment are not ordinarily entitled to any pension or gratuities. Wound or Extraordinary Pensions and Gratuities are, however, in certain cases admissible in accordance with the pension rules. All members of the work-charged establishment, who are not entitled to any pension on their retirement, may be granted gratuity on the following scales. The whole basis for the refusal of pension is that the petitioner earlier was a work charged Roller Driver and he was brought under regular establishment only on 5.11.81. Be that as it may, the Governor under Rule 31 Proviso 2 quoted above has the power to allow for the service rendered by an officer to count for pension and the facts and circumstances of this case show that this is a pre-eminently a fit case where it Should be done . Accordingly, I direct that the respondents No. 1, 2 and 3 shall do the needful to allow the service rendered by the petitioner from 1957 to count for pension as provided in the aforesaid rule and shall grant necessary pension to the petitioner. This shall be done within a period of 3 (three) months from the date of receipt of this order. The writ application accordingly stands disposed of.


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